Siman 45

The witnesses sign at the bottom of the document and not from the sides and not from above, and it is an enactment of the sages so that one cannot forge by writing at the bottom of the document whatever he wishes [Sma]. And even if he cannot forge, such as if "sharir vekayam" is written in it, or if one witness is signed at the bottom and the second from the side, it is also pasul since it was not done according to the enactment of the sages [Shach, and see there]:

Initially, the witnesses should sign their name and their father's name, "So-and-so son of So-and-so, witness." If they signed only their name, "So-and-so, witness," it is valid ex post facto [Sma]. Similarly, when he did not write his name but only "son of So-and-so, witness," it is also valid. Likewise, if he signed "So-and-so son of So-and-so" and did not write "witness," it is also valid. However, when he wrote his name alone or his father's name alone and did not write "witness," it is invalid, because it can be said that he did not sign himself for the purpose of testimony [Even HaEzer siman 130]. But if they mentioned at the beginning of the deed, "before us, the undersigned witnesses," it appears to me that it is valid even if they did not sign "witness," even with their name alone or with their father's name alone. It is not similar to a get, which is invalid in such a case, because the get is the language of the husband and the names of the witnesses are not mentioned in the get; but regarding deeds, when the names of the witnesses are mentioned in the deed beforehand, it is valid.

The witnesses are obligated to read the document themselves before they sign and shall read word for word, and if another reads before them it is not effective. And there are those who say that if two read before them it is effective, for since they know the matter that was done before them or that the party admitted before them, and they only need to read the document, it is not like a witness from the mouth of a witness; rather, one is not believed but two are believed, and even not in their innocence. And if they do not understand the language of the document, the readers shall translate for them and they sign. And there are those who say that ab initio they must understand the language of the document and that they must specifically read themselves, and it is not effective that two read before them, and even if their reading is in their innocence it is not effective; but ex post facto it is valid when two read before them, and even not in their innocence, and even when they do not understand the language of the document [Shach].

When the head of a beit din signs as a witness on a document, the sages, of blessed memory, permitted it when his scribe reads it before him, even though he did not read it himself, because his fear is upon him and he will not lie. Specifically his scribe, but another scribe is not effective. Similarly, when the scribe of the head of the beit din reads before another person, it is not effective, as the fear of other people is not upon the scribe of the head of the beit din; likewise, the fear of the head of the beit din is not upon another scribe. And it appears to me that when a judge reads before the head of the beit din, or his attendant, it is also effective, as it is known that his fear is upon them.

Specifically for witnesses is the obligation to read the document, but a party to the matter who signs on the document to obligate himself in any matter or to exempt his fellow from any matter, even if he signed when he did not read the document, and even if we knew that he does not know at all what is written in the document, and even if the document was written in the language of the gentiles and the matter is clear that he does not know how to read and does not understand the language at all, nevertheless he is obligated in everything that is written in it. Since he did not concern himself with reading it and relied upon the trustworthiness of others, he resolved in his mind to obligate himself in everything that was written there. Therefore, even if he signed his name on a blank paper and delivered it to a trustee or to the party to the matter, he obligates himself in everything they will write upon it (see in the Sma). And if one brought before a beit din a document with a signature alone and nothing is written upon it, whether it is effective will be explained in siman 48. And it appears to me that despite this, if there are witnesses who read the document before him and deceived him, such as if they read "one hundred" before him and it was found in the document "two hundred" or the like, or if they agreed before witnesses that they would write "one hundred" on the blank space and it was found "two hundred," that the document is invalid. For go after the reasoning, as he did not subject himself to what is written in the document. And if two witnesses testify, the document is invalid, and if there is one witness, the claimant shall swear to contradict the witness (so it appears to me).

In Gittin, the sages, of blessed memory, permitted—when witnesses who know how to sign are not found—that one may tear for them a blank paper from side to side according to the form of the letters of their names, and place it upon the parchment or upon the paper of the get, and the witnesses fill the tears with ink, and it results that their names are signed on the get. They permitted this in a get because of the regulation of agunot, but in legal documents it is forbidden to do so. And if they did so in legal documents, they strike them with a makkot mardut and the document is invalid, though some validate the document.

If the litigant is unable to sign, he may request another person to sign on his behalf and hand him the pen, and the other shall sign there with the help of Heaven and write that it is by handing over the pen. However, a witness cannot sign by means of handing over the pen unless it is a place where it is the custom that the city scribe signs on behalf of the witness, writing "So-and-so son of So-and-so signed by handing over the pen," or if he wrote "So-and-so son of So-and-so commanded to sign." If the residents of the city accepted upon themselves to treat his testimony as the testimony of the witness, it is valid; and if they did not accept this upon themselves, it is nothing. And where they accepted it upon themselves, the reason it is valid is that it is like "my father is trusted for me," as was explained in siman 22, which is valid.

Any document that comes before us where witnesses testify regarding the signatures of the witnesses, we validate it and we do not concern ourselves that perhaps they did not read the document and did not know at all what was written there, for there is a presumption that witnesses do not sign a document unless they have read it and know how to sign according to the law. However, if the witnesses are before us and it is known that they are unable to read the document, if they say of their own accord before the judges ask them that they gave it to two people to read, we rely upon them and it is valid ex post facto, as was written in section 3. And if they do not say so of their own accord, the beit din must be very precise in their testimony; if they align with the matter as it is written in the document, such that they know everything written in the document, we validate the document. According to the Sma, they must nevertheless ask them if they gave the document to be read by two who know how, but according to the Shach, there is no need to ask them when they align with the matter of the document, for even if they did not give it to be read and relied upon the owner of the document himself, it is also valid ex post facto since they know what is written in the document and it turns out they signed upon this, and it is valid. But when they say of their own accord that they gave it to be read, there is no need to ask them regarding the matter of the document. And the Taz agreed with the Sma that if they did not give it to be read, it is invalid even ex post facto, even when they aligned with the matter of the document. And it appears proper to rule according to the words of the Shach. But if the witnesses are not before us and it is known that they are unable to read, certainly the document is invalid, unless two testify that in their presence they gave the document to be read to two people (as mentioned above).

The witnesses must be careful not to distance themselves from the writing by a width of two lines, and if they distanced themselves by two lines it is invalid, even if he wrote "sharir vekayam" and even if it is known that he did not add or forge anything in it, for any document that has the potential to be forged is invalid. And when two lines are distant from the writing, there is the potential to forge it, as has been explained in siman 44. And even if they filled it with ink, such that they filled it with dots of ink and the whiteness is visible from within the dots, and there is no longer any concern in this, for one cannot write within the dots, and that we should suspect perhaps he erased something is also not a concern since the whiteness is visible, nevertheless it is invalid, so that they should not say that the witnesses did not sign themselves on the essence of the document but rather on the ink-fill, that they testify that the ink-fill was made in their presence, and they will not suspect the owner of the document.

That which we say, that if he distanced it by two lines it is invalid, this is specifically regarding collecting with it from encumbered properties; or alternatively, from unencumbered properties, if the borrower claims "I paid," he is believed with an oath as with an oral loan. However, he cannot claim "the matter never occurred," for the transaction is true, and it is like a loan with witnesses orally.

This matter is known, that the writing of a scribe is a fine script due to his professional habit, and that of ordinary people is a coarse script, and such is the case with most signatures of witnesses. Therefore, these two lines that they mentioned must be spaced like the handwriting of witnesses, which is a coarse writing, for anyone who forges does not go to a scribe because he fears that he might reveal the matter. So too, the space of the two lines must be them and their air; for example, that it should be possible to write within these two lines a lamed in the upper line and a long khaf in the lower line. The head of the lamed is for the sake of the air between the upper line and the deed, and the leg of the second is for the sake of the air between the lower line and the witnesses. So too, there must be air between line and line, and there must be a space of two lines in the handwriting of witnesses and three air-spaces. And if there is less than this, the deed is valid.

Even when the document concludes in the middle of a line, and they left that half-line and another full line and began to sign on the third line, it is also invalid, because one could write whatever he wishes in that half-line and return to the matter of the document with "sharir ve-kayam." And even if "sharir ve-kayam" is written in the document, because he could write "sharir ve-kayam" once more in this half-line and in the line before the last, it is valid twice "sharir ve-kayam," as was written in siman 44, section 5 and section 16 (Shach). And similarly, if the document concludes at the end of a line and the witnesses distanced themselves a full line and the witnesses began in the middle of the second line, it is invalid if they sign one after the other in that same half-line, because he could write in the blank half-line before their signatures "Ploni borrowed from Ploni a maneh," and it would be a document where it and its witnesses are on one line, which is valid, and he would cut off all the upper part. But if they signed one under the other, there is no concern that he will write before each witness "Ploni borrowed from Ploni a maneh" and they would be two witnesses on two documents, for two witnesses on two documents in such a case where there is only one line in each do not join together. And similarly, two witnesses on two lines in one document in such a manner do not join together (Shach). And even though there is a concern that he will commit a forgery regarding each of the witnesses, that he will write before the signature of each one "I am indebted to Ploni a maneh," however, regarding the loss to the witnesses we do not concern ourselves, for the witnesses caused the loss to themselves as they should not have begun to sign in the middle of the line, and we only invalidate the document when there is a concern that he will forge to extract money from others (Sma). But when the witnesses signed in a document that concludes in the middle of a line, and they signed in the middle of the line and signed in the remaining half-line side by side, it is valid. And then we learn from the half-line before them and from the line above them, for there is no need to concern ourselves with anything, for we establish the witnesses in their presumption that if they did not see that the document was written also in that half-line that precedes their signature, they would not have signed themselves in the half-line, since he could forge it and make from it a document where it and its witnesses are on one line (Sma), and as was written in siman 44, section 4.

The witnesses must be careful when they sign a shtar and there is much blank space before their signatures, even if they sign level with the text of the shtar; however, usually one does not begin writing from the edge of the margin. And if much blank paper remains at the side of the margin, they should not sign one after the other on a single line, for perhaps one will write whatever he wishes in the blank space at the side of their signatures and cut off the entire upper portion, and it will be a shtar where it and its witnesses come on a single line. And how shall they act? They shall blot out the blank space at the side with ink dots, and if he did not do so, it is pasul [Taz]. And there is no concern that they will say "they signed on the blotting," as mentioned in section 9, for that applies specifically if the blotting is between the shtar and the witnesses; in that case it is relevant to say they are testifying that no forgery was committed here. But regarding blotting at the side, why would they testify to this? Let them cut the margin from the side. Therefore, when they sign in the middle of a line not level with the text of the shtar, blotting is of no avail, for here if they cut that part it is pasul, for perhaps the obligation of the bearer of the shtar or some condition was written there and he cut it off, for the obligation of the bearer of the shtar is learned from the final line, as mentioned in siman 44, section 1. Therefore, the blotting is also pasul, for we fear perhaps they will say "they signed on the blotting." Therefore, in a place where they are accustomed to write in all shtarot "sharir ve-kayam," since they do not write anything after "sharir ve-kayam," as mentioned in siman 44, section 5, he may cut it and he may also blot it. And this is specifically when the witnesses are signed one under the other, but if they are signed one after the other, it is pasul to cut it, for we fear perhaps it was a shtar where it and its witnesses come on a single line and he cut it, and there was blank space above and he wrote this shtar upon it; and therefore even with blotting it is pasul, as has been explained. And one must be careful when making a shtar where it and its witnesses are on a single line that there should not be much blank space above, but rather he should cut it or blot it with ink [Sma].

There is a remedy for a shetar whose witnesses are distant from the shetar by two lines or more, in that they may fill the space with witnesses; and even with disqualified witnesses or relatives one may fill them, since they were only signed to fill the shetar and are not associated with the witnesses of the shetar such that it would be considered as if one of them was found to be a relative or disqualified whereby their testimony is void, as I wrote in siman 36. And the shetar is kosher, for behold, he cannot forge since it was filled with signatures. If the shetar was seen in beit din before they filled it, it no longer has a remedy, for any shetar that was seen in beit din in its disqualification, having not been made according to the enactment of the sages, behold it is like a mere shard and a correction does not avail it. But before the shetar comes to beit din, they can make it kosher by filling it even with relatives or disqualified individuals. And even if the creditor did so of his own accord without the knowledge of the debtor, it is kosher, for there is no disqualification upon it to say that it is not in his power to make a shetar without the knowledge of the debtor, for the shetar was already made and he adds nothing to it, only to save it from the disqualification of the space between the shetar and the witnesses, and the knowledge of the debtor is not required for this. And there are those who disagree on this, for in any event, since without the filling the shetar is disqualified and the debtor was not liened by a disqualified shetar, and when it is filled the shetar becomes kosher and he becomes liened, if so, he cannot do this without the knowledge of the debtor; and when it is filled without the knowledge of the debtor, it is disqualified.

That which we have validated regarding the filling of witnesses is specifically when they filled it on the very day it was written and signed, but if they filled it the next day, it is invalid, even when done by the command of the debtor, for it is a predated document and he would collect from prior purchasers unlawfully. For as long as it was not filled, it does not have the status of a document and the purchasers were not liened; and when were they liened? When it was filled, and thus it is predated and invalid. And even according to the first opinion in the previous section, that the creditor may fill it without the knowledge of the debtor, nevertheless in this case it is invalid, for ultimately the lien does not begin until the time of the filling. And that which he can do without the knowledge of the debtor is because since he delivered the document into his hand, it is as if he authorized him to do so since he added nothing to the document itself, as has been written [Shach and Taz]. And all this applies to a document that does not contain a kinyan, but in a document that contains a kinyan, we are not concerned even if he fills it after a long time, for the lien is from the time of the kinyan, as has been explained in siman 39. But without a kinyan, even according to the one who says "his witnesses acquire for him through their signatures," it is invalid here, for since it was not signed properly, they do not acquire for him [Sma].

When a document comes before a beit din that had many witnesses, and one of them or more was found to be a relative or disqualified, or two witnesses were found to be related to one another, and the beit din does not know if the relatives signed only as a mere filling and the document is valid as has been written, or if they were also witnesses to the document together with the valid ones: if the valid witnesses are alive and present in the city, the beit din sends for them and asks them. If they say that the disqualified ones signed only as a filling, the document is valid. If they say that they were all witnesses to the document, they are believed even when their handwriting is established from elsewhere, and this is not like "returning and testifying," and they are believed and the document is disqualified. If they say that the relatives signed only as a filling and other witnesses testify that they were all witnesses, they set two against two, and the money remains in the possession of the owners and they cannot extract it with this document [Beit Yosef]. Further details on this were explained in siman 36. However, when the witnesses are not alive and it is impossible to ask them, if other witnesses testify either this way or that way, they act according to their testimony. If there is no testimony at all regarding this, we hang the document on the assumption that it was done in a valid manner and the disqualified ones signed only as a filling. According to this, one should only validate it when the first witnesses are the disqualified ones, for then we hang it on the assumption that they signed as a filling; but when the first ones are valid and the middle or last ones are disqualified, such that it is not relevant to say they signed as a filling, the document is disqualified. According to this, in a document that has many witnesses, they should not establish the document from the witnesses at the top, for perhaps they signed as a filling. And there are those who disagree, holding that they may establish it from any two in the document, for ordinarily we do not fear that there are relatives or disqualified ones among the witnesses, and such is the primary ruling [Shach].

And there are some of the Rishonim who disagree with this and hold that since regarding the first two, who are the essence of the document, we assume they signed for the purpose of filling, all the more so regarding the other witnesses in the document we assume this. And even though there it is not applicable to say they signed to fill the space between the document and the witnesses, nevertheless we assume they signed to fill the document with more witnesses. Our teacher, the Rema, ruled according to the first opinion, that specifically regarding the first two we assume they signed because the valid witnesses distanced their signatures from the document either by error or they did this intentionally, as they thought the owner of the document would have other valid, prominent men sign, and therefore they left empty space for their honor so they would sign first, and the owner of the document did not find them and had relatives or disqualified people sign. But after the signatures of the first ones, why would the owner of the document have more witnesses who are relatives or disqualified sign to no benefit? And logic dictates according to this opinion. In any event, ab initio no relative or disqualified person should sign on the document; even when it is necessary to fill the empty space, they should obtain valid witnesses. And all this, that we assume they signed for the purpose of filling, is specifically when they signed one under the other, but when all the witnesses are signed on one line, it is certainly disqualified, for in this it is not applicable to say they signed for the purpose of filling, and it is a simple logic. However, if only the last two are signed on one line and the first ones are signed on a line above them, it is valid, for it can well be said that the first ones signed for the purpose of filling [Sma].

If the valid witnesses were disqualified by the signatures of the invalid witnesses, such as if it became clear that all of them signed as witnesses, if the valid witnesses remember the testimony, even if they remembered it through seeing the document, they may testify now and the beit din shall write their testimony as it is written in the document, and it is considered like the first document. However, the witnesses themselves cannot make another document because they have already performed their mission [Shach], unless by the command of the borrower who says to them now, "Write, sign, and give to the lender" [Netivot HaMishpat]. And they shall write the document from the time he commands them and not from the time of the first document. And even a beit din cannot make it from the first date unless there was a kinyan prior to the loan [Netivot HaMishpat], for since the document is invalid, the status of a document is not upon it. But to collect from the borrower himself, a second document is not needed at all, except that he is believed to say "I paid" like a loan by word of mouth, where he is believed with an oath to say "I paid" [as mentioned above].

That which we said, that it is possible to make another deed based on the valid witnesses, this is specifically when they did not witness their testimony together with the disqualified witnesses; but when they witnessed their testimony as one and signed together on the first deed, their testimony is completely disqualified, as is written in siman 36 regarding the details required for this.

A creditor who comes to collect land from a purchaser and collected it, and afterwards the purchaser claims that the document was invalid because the witnesses distanced themselves by two lines between the witnesses and the document, or some other invalidity, there is nothing in his words [and this is the intention of the Shulchan Aruch in section 16], for since he paid him, presumably it was a valid document. And similarly, one who comes to collect by means of a document that he has against a gentile from an Israelite who bought land from the gentile debtor, and the purchaser claims that the document which the creditor has against the gentile has a distance of two lines between the witnesses and the document, and the truth is so—if it is the custom of the gentiles to collect with it, as they are not particular about the distance, the Israelite may also collect with it. For one who comes by power of a gentile is like him; and if the land were in the hand of the gentile, he would be obligated to pay according to their laws, therefore the one who purchases from him is also obligated to pay.

A document that comes entirely on one line and its witnesses are on another line is invalid, for perhaps the witnesses distanced themselves from the document by one line, and he cut off the entire document and wrote this document on that line, and the witnesses are found signed upon it. But when the entire document with all its witnesses is on one line, it is valid, for there is nothing to fear. However, if the document and two witnesses are on one line, and below on the other line there are two more witnesses, there is reason to fear that perhaps there was a document that the lower witnesses were signed upon, and a line of space remained between the document and the witnesses, and he cut off the entire document and on the vacant line wrote a document with witnesses, and he will say that his intention was to increase the number of witnesses. Therefore, when such a document comes before us, we do not certify it from the witnesses on the second line, but rather from the witnesses on the first line; and if he certifies them, it is a sign that it is a true document, and if he does not certify them, the document is invalid even though he certifies the witnesses below. And likewise, if the document was two lines, but the first line does not begin at the top of the parchment level with the second line, but begins in the middle of the second line, and the parchment before it was cut, it is invalid, for we fear that perhaps there was a document that they concluded in the middle of a line and left the remainder blank, as well as the line below it, and signed, and he cut off the entire document and forged in the line and the half-line what he desired, and behold the witnesses are signed upon it. And although it was explained in siman 44, section 4, that witnesses should not sign on a document that can be forged, and we do not suspect the witnesses of signing on a document and leaving a blank line and a half-line before it, as is written there, nevertheless, here where there is a deficiency before us in that the document begins in the middle of a line, we fear for this [Sma]. And furthermore, there is reason to fear since half the line was cut, perhaps the obligation of the holder of the document was written therein [Taz]. And even when there is a small blank space, it is also invalid because of such a great deficiency, as it is not common in all documents to begin a document from the middle of a line [and even though the Shach questioned this, nevertheless the law is so, as is written in the Urim VeTumim].

A document that comes before us where it and its witnesses are on an erasure, having been written on erased paper, is kosher, provided that there is no variation in the erasure between the document and the location of the signatures of the witnesses. For if there is any variation, there is a concern that perhaps the creditor, after a document written by it and its witnesses on an erasure came into his hand, forged it and went back and erased the document and wrote upon it what he desired; therefore, it is different from the location of the signatures of the witnesses because it was erased twice. Similarly, there should be no variation in the document itself between one part of this document and another part of this document [Shach], for if there is a variation, we concern ourselves that perhaps he erased the location of this part of the document of what was written upon it and wrote what he desired, and therefore it changed because this location was erased twice. Therefore, the witnesses shall not sign on an erased document unless it was erased in their presence, for if not so, there is a concern that perhaps the location of the signatures was erased twice and the location of the document once, and the witnesses will not sense or be exacting in this, and the creditor, when he goes back and erases the document and writes what he desires, the location of the document and the location of the signatures of the witnesses will be equal, and everything will be erased twice. Furthermore, they must be careful that everything is erased on one day, because an erasure of one day is not similar to an erasure of two days, and since it is not similar, he would be able to perform some forgery. And if there is a space between the signature of the first witness and the signature of the second the size of the writing of "we witnesses signed on the erasure," and the document is on the paper, it is invalid, for we concern ourselves that perhaps the document was on the paper and its witnesses were on the erasure, and there was written between the signatures of the witnesses "we witnesses etc." and he erased it, and also erased the document, and wrote what he desired afterward. And even though if so, there must be a difference between the location of the signatures of the witnesses which was only erased once and the location between the signatures of the witnesses which was erased twice, and the beit din would discern this, nevertheless we concern ourselves that since nothing was written between the signatures of the witnesses, the difference is not recognizable; for specifically when both locations are written upon is the difference recognizable, but in such a case it is not recognizable. But if there is no erasure here at all, such that it was not written nor signed on erased paper, the space between one signature and another does not invalidate the document, for there is no concern at all, as if something had been written there and he erased it, the erasure would be recognizable.

A document that is on the paper and its witnesses are on the erasure is invalid, for we fear perhaps he will erase the document and forge it, and it will turn out that it and its witnesses are on the erasure. And if the witnesses wrote, "We the witnesses signed on the erasure and the document is on the paper," it is valid. And specifically when they wrote this between the signature of the first witness and the signature of the second witness; but if they wrote this before their signatures or after them, it is not effective. For if it is after them, we fear perhaps he will cut it off or erase it, and if it is before them, perhaps he will erase it, and even though there will remain a space between the document and the witnesses, yet this wording is only according to the measure of one line, and we have already explained that with one line the witnesses can be distant from the writing.

A document where the text is on an erased surface and its witnesses are on the paper is invalid, even if they wrote before their signature, "We, the witnesses, signed on the paper and the document is erased," because ultimately he may erase the document once more and forge it and write whatever he desires. And even though, if so, it would be erased twice, and we have explained that the beit din would recognize the difference between that which was erased once and that which was erased twice, this is specifically when next to that which was erased twice there is a place erased once; then the difference is recognizable. But here, where there is no place next to it erased once, but rather a place not erased at all, they will not be able to discern this.

In a place where it is customary to write a payment between the lines, one must be careful that there is no erasure between the lines, because there is reason to fear that perhaps there was a payment recorded there and he erased it. And all the more so if the payment between the lines was written over an erasure, for certainly there is reason to fear that perhaps the payment was more than what is written here, and he erased it and wrote what he desired. And if the borrower contests and claims thus, certainly his claim would be a valid claim. And if he collects not in his presence from orphans or from purchasers, the beit din will be concerned for this. And if there are witnesses that the payment is the handwriting of the borrower, it is valid, and there is no concern if the payment was written over an erased place, for since it is the handwriting of the borrower, there is no reason to fear anything.