Siman 49

If the borrower or the lender, or the seller or the buyer, or the giver or the recipient has two names, one primary and one secondary, it is not necessary to write anything but the primary name. For example, if most people call him Avraham and there are some who call him Avraham Yitzchak, it is not necessary to write even ab initio anything but the primary name, Avraham. Post facto, if he wrote only the secondary name, Yitzchak, alone, it is valid. And the kinnui is not necessary to write even ab initio; for example, Aryeh and his kinnui is Leib, it is not necessary to write anything but Aryeh, and likewise if he wrote only Leib it is valid, for even with the nickname alone there is no concern. And also if he is a Kohen or a Levi, it is not necessary to write it. And even though regarding gittin they are meticulous about all of this, as is explained in Even HaEzer siman 129, this is because of the stringency of a married woman; but regarding documents there is no concern. And if there is another person in the city whose name is like his name, he should write his father's name as a sign. And if their fathers' names are also identical, he should write Kohen or Levi, and if he is a Yisrael, he should write the name of his father's father or his family name and the like.

The witnesses must recognize the lender and the borrower, that they are indeed those written in the document. And in a deed of sale, they must recognize the seller and the buyer; and in a gift, the giver and the recipient; and in a receipt, the lender and the borrower. For if not so, there is a concern lest these people standing before the witnesses are other people who assumed other names and made a conspiracy to extract money from another man. And some say that only in a receipt must they recognize both of them, for since the lender writes the receipt to deliver it to the borrower, they feared that even if they recognize the name of the lender, perhaps there is another lender in the city whose name is like the name of this lender, and this borrower standing before us did not borrow from this one but from the other whose name is equal to this one, and they made a conspiracy between them that this man will exempt himself from his lender with this receipt. Therefore, they required recognizing the borrower as well, and they did not fear further lest there be in the city a lender and borrower whose names are equal to these, or perhaps this borrower is also indebted to the other whose name is like this lender, for if so, there is no end to the matter and such is not common. But in a deed of loan where the borrower gives the document, since we recognize this borrower and he obligates himself and says to the witnesses, "Write against me that I am indebted to so-and-so son of so-and-so a maneh," even though they do not recognize the lender, what have we to fear? Lest there be another one in the city whose name is like the name of this borrower standing before the witnesses, and this man will go and deliver it to a man whose name is like the name of the lender written in the document and collect from the other? For if so, even if they recognize the lender, we have not escaped this concern, for we should fear lest this lender himself collect from the other. And in truth, the sages, of blessed memory, said that if there are two in the city whose names are equal, another cannot produce a debt document against them, and it will be explained in this siman. Therefore, it is only necessary to recognize the borrower, and in a sale the seller, and in a gift the giver. And only if the document is without a kinyan must they recognize both of them for another reason that was explained in siman 39, that any document without a kinyan is not written for a borrower without the lender because of the concern of an antedated document, as is written there. And if they do not recognize the lender, this concern will still remain, that perhaps the document will not reach the true lender until after some time and he will collect from purchasers unlawfully. However, according to the poskim who hold that "witnesses through their signatures acquire for the lender" and his properties are immediately liened to the lender even without a kinyan, it is never necessary to recognize anything but the name of the borrower, the seller, and the giver (Shach).

If the witnesses do not recognize them, they may rely even on those disqualified from testimony, such as a relative or a woman, who testify that such is their name; for regarding a matter that is destined to be revealed, people do not lie, and even one is sufficient. They did not require formal testimony for identification. However, one may not rely on those disqualified due to their wickedness, for a wicked person is not concerned about lying even in a matter destined to be revealed. And if they relied on one witness, or a woman, or a relative, and afterwards the witnesses say that they spoke falsely and this is not the man or the woman who stood before them initially—if it is explicitly stated in the deed that the witnesses did not recognize them and that they relied for their identification upon so-and-so, they are believed to say afterwards that they were misled (as is implied by the Sma). But if they did not mention the identifiers in the deed, but rather wrote simply "so-and-so and so-and-so," they are not believed to say so, for presumably they scrutinized beforehand that they are the people written in the deed. However, if the witness is a talmid chacham whose way is not to scrutinize identification so much, he is believed to say that this is not the person; and even if only one of the witnesses is a talmid chacham, he is believed to say that they misled him, even if the second witness contradicts him, and the deed is disqualified. There are those who say that only regarding a woman is the talmid chacham believed to say that they misled him, because it is not the way of a talmid chacham to look at women, but regarding a man he is not believed. The great later authorities decided in accordance with the first opinion. All this is when they relied on something other than formal testimony; but when they relied on valid witnesses, or if the witnesses recognized them on their own, even a talmid chacham cannot say that he erred, nor can he say that the valid witnesses misled him, and certainly this is the person, but rather he is now erring in this. And regarding any other type of error found in a deed, if the matter is proven according to the context that it is an error, the deed is valid, and we say that they erred, as in the case of "a scribe's error regarding a guarantee" which was explained in siman 39. And if not, it is not in their power to say that it is an error, and this matter depends on the perception of the dayanim according to the context.

Anyone whose name was established in a city for thirty days, we write that name, and we are not concerned that perhaps he intentionally changed his name all this time in order to commit a conspiracy. And similarly, if they call him Reuven and he answers, and they wrote a document against him that Reuven borrowed from Shimon, and he claims afterward that his name is not Reuven, he is not believed to exempt himself from a matter that is an obligation upon him, even when he was not established in the city for thirty days by the name Reuven; since they call him Reuven and he answers, certainly Reuven is his name.

A document that was produced before us and the debtor claims and says, "I owe nothing, perhaps some deceiver assumed my name as his own and obligated himself to this person in my name"—if two people whose names are identical have not been established in the city, we do not concern ourselves with his words unless he brought clear proof. For if not so, there is no end to the matter, and there is a presumption regarding the witnesses that they were properly exacting. And likewise, if he says, "It is true that I borrowed, but not from this creditor, rather from another, and this claimant is a deceiver and assumed his name like the name of my creditor," we do not concern ourselves with his words, even when there is another person in the city whose name is like the name of this creditor, according to what will be explained in this siman, for two people whose names are identical may produce a document of indebtedness, except when the document does not emerge from the hand of the creditor, as will be explained with the help of Heaven.

It has already been explained in siman 41 that regarding a document that was burned or erased, the witnesses do not have the power to write another document without the knowledge of the borrower, because witnesses who have performed their mission do not have the power to perform another mission in this matter without the knowledge of the owner of the document. However, if it became clear that they erred, such as one who was established by a nickname in the city and they wrote his name in the document with this nickname, and afterwards it became known clearly that he had another nickname, or if it became clear that they erred in the name of the borrower or the lender or in the sum of money or any other error, they may write another document even without the knowledge of the borrower. For in this, "they have performed their mission" is not applicable, since they did not act properly. And even a doubtful error, since from the side of the doubt one cannot collect with this document, it results that it is not a document (Ktzot HaChoshen). And there is one who says that this is specifically in a case of certain invalidity (Shach). And the first opinion appears primary; see Even HaEzer siman 122. And some say further that even a document that was written properly, as long as the document has not come into the hand of its owner and there is no kinyan in the document that would transfer ownership to him even without delivery into his hand, they may write another document if it is needed for that, for "they have performed their mission" is not applicable in this, since it has not yet reached the hand of the owner and he did not acquire it without a kinyan, as written in siman 39. And some say further that regarding documents that do not contain responsibility, such as a deed of gift or a deed of sale without responsibility or receipts, "they have performed their mission" is not applicable to them at all even when the document was delivered. For specifically regarding loan documents or deeds of sale with responsibility, where one extracts money by means of this document, the witnesses do not have the power to act without a beit din; but regarding that which has already been done, and from now on there will be no further extraction of money by means of this document and it is only for mere evidence, it is not applicable to say in this "they have performed their mission" (ibid.). And there is one who says that any document in which it becomes clear that there is an error, even if they did not write another document at all, this document is kosher since the error is clear and there will be no stumbling block in it. And if one witness signed on the document and the second has not yet signed, they may always write another document without the knowledge of the owner of the document, for as long as two witnesses have not signed, it is not applicable to say "they have performed their mission" (Netivot HaMishpat). And so too if the owner of the document commanded that three witnesses or more sign, and they all signed except for one of them, their mission is also not yet finished. And so too if they omitted some matter or some condition, it is not called "they have performed their mission," and they may write another document without the knowledge of the owner of the document.

If there were two people in the city whose names and the names of their fathers were identical, such as if both were named Yosef ben Shimon, neither of them can produce a shetar against the other if it contains a kinyan. And the reason is that this is certainly so even according to what I wrote in siman 39, that they write a shetar for a borrower without the lender; in such a shetar, the witnesses should not write for the borrower alone, for they must concern themselves that perhaps this borrower will say to the lender, "I am the lender and you are the borrower," and will claim from him [Bava Batra 173a]. Therefore, they should only write such a shetar when both are together. And even though there is still a concern that the borrower will say to the lender, "This shetar that you produce against me is mine, and I returned it to you when you paid me the debt that was due to me from you," nevertheless, the witnesses may sign, for he has the ability to tear the shetar when he pays it. Furthermore, since the lender is before us and is not concerned about this, the witnesses need not be concerned on his behalf [Rashbam ibid.]. However, they may only collect with this shetar from bnei chorin and not from meshubadim, for the purchasers can say, "You made a conspiracy between you, and the lender handed over the shetar to the borrower in order to collect from purchasers who bought from the lender." Therefore, in a shetar that does not contain a kinyan, they can produce this shetar against each other, for certainly the witnesses did not sign for the borrower without the lender, and the borrower cannot claim, "This shetar was mine and I returned it to you when you paid me," for why did he not tear the shetar when he paid him, and why was he not concerned about this at the time of the writing of the shetar? Therefore, he collects from him from bnei chorin. But in a shetar that contains a kinyan, which subordinates his properties to him to collect from purchasers, certainly we concern ourselves with a conspiracy as I wrote. Therefore, with such a shetar, they do not collect from purchasers. And therefore we said "if it contains a kinyan," for in one that does not contain a kinyan, it can be said that the witnesses acted properly and did not write the shetar for them to collect from purchasers. But when a kinyan is written in it, and the kinyan is only effective to collect from the time of the kinyan from purchasers, as I wrote in siman 39, then perforce the witnesses acted improperly. Therefore, this shetar is like a shard, and the lender has against the borrower only an oral claim; and if the borrower denies it to him, he swears a hesset oath and is exempt. Therefore, even though regarding all shetarot we say "responsibility is a scribal error," nevertheless, with such a shetar one may not collect from purchasers due to the concern of a conspiracy [so it appears to me, and the acharonim were very pressed in this, and that which the Tur and the rishonim added a reason upon the reason of the Shas is well-settled; and delve into it].

And similarly, another cannot produce a shtar chov against them, for each one will say, "This shtar was not written against me, but against the other," and there is no remedy for this unless the witnesses of the shtar themselves come and say, "This is the man concerning whom we testified, and he is the borrower of this shtar." And regarding the previous section, when one produces [a shtar] against his fellow, they shall say, "This is the lender and this is the borrower." And specifically the witnesses of the shtar themselves, but other witnesses, even if they testify that this is the borrower, do not have the power to make him a borrower by shtar, since it is not proven from within the shtar who the borrower is, and this is only like a milveh al peh. But the witnesses of the shtar themselves, since they have the power to make another shtar in which it will be clarified by a siman who the borrower is—for behold, they have not yet finished their mission since it is not recognizable from within the shtar—therefore it is like a milveh b'shtar [Sma]. And some say that even with the witnesses of the shtar themselves, it is only like a milveh al peh [Shach], and such is the primary [ruling]. And especially according to what we explained in the previous section, that the witnesses did not act properly because it was possible to make a conspiracy with this shtar; and even though regarding the production of a shtar chov against them, the witnesses are not obligated in this—for do they have to know that there is another Yosef ben Shimon in the city?—nevertheless, since in any event it is not proven from within the shtar who the borrower is, it is not a shtar at all. And if one of them was a minor at the time of the writing of the shtar, they collect from the other, for witnesses do not sign a shtar against a minor, and certainly the adult is the borrower. And therefore, when the witnesses know that there is another man in the city whose name is like this one's name, and similarly when one borrows from his fellow, they should write the name of their grandfather or another siman, Kohen or Levi or a family surname and the like. And if they are from two places, they should write the siman of the places; and even though one does not need to write the name of the city in the shtar, nevertheless, if they wrote it, it is simple that it is a good siman. And in our times, the custom is widespread that they always write the name of the city in which the shtar was written, and when the lender and the borrower are from two places, they write for each one his place, such as "Reuven ben Yaakov from Bavel borrowed from Shimon ben Yaakov from Yerushalayim," and it is proper to do so and one should not deviate. And our teacher, the Rema, wrote: If there are two [named] Yosef ben Shimon in one city, and one's father died and the other's father is alive, and it is written in the shtar "Yosef ben Shimon, shlita" or "neru," as they write concerning the living—if the witnesses wrote, "Yosef ben Shimon, shlita, said to us," it is a siman that he is the son of the living one. But if it is written in the shtar, "I, Yosef ben Shimon, shlita, borrowed a maneh from so-and-so," and the witnesses are signed below, this is not a siman, for we fear perhaps the second one wrote this and the witnesses were not precise in this, for they do not testify on the entire matter. Thus far his words. And there are those who disagree with all his words, for even if it is written "Yosef ben Shimon, shlita," it is possible that "shlita" refers to Yosef, and that they did not write "Yosef shlita ben Shimon" because it is not the way to write so, and in the Scripture we find so: "David ben Yishai, King of Israel." And if so, this is not a siman that he is the son of the living one. But regarding a good siman, even if he himself wrote so and the witnesses are signed below, it is a good siman, for witnesses testify on the entire matter [Shach], and so the Acharonim agreed. And therefore it appears to me that according to our custom, when a person writes about himself, he does not write "neru" nor "shlita"; if so, when it is written "Yosef ben Shimon, neru" or "shlita," certainly it refers to his father.

Two Yosef ben Shimons in one city may produce a document against others, and the debtor cannot say, "I did not borrow from you but from the other, and he lost the document and you found it." For since the document is produced from his hand, we establish the presumption that it is his, and we do not concern ourselves with this falling—that it fell from the one whose name is like his name and he found it. But if the document is not produced from his hand, but rather from the hand of a third party and the third party does not know which of the two it is, or if the document was lost from one of them, both of them cannot collect from the debtor even when he admits that in any case the document is true and he is liable to one of them, for he can deflect each one of them. Therefore, they should write an authorization to one another and they shall collect from him in any event, whether by his own power or by the power of the other who authorized him. And so too, if one of them admits that the document is not his but belongs to the other, only that he purchased it from the other, he does not collect with it even when the document is produced from his hand, for documents are not acquired by delivery alone like other movable property, but rather by writing and delivery, as I have written in siman 66 [Shach]. And it does not avail that they are equal in their names, since the document was not written for him. And if he was liable for a loan by oral agreement to one of them and he does not know to whom, and each one says, "You borrowed from me," he is liable to pay both of them, as I have written in siman 76 [Netivot HaMishpat].

If one man is indebted to two people and holds a shover from one of them, neither of them can sue him, for he can say to each one, "You wrote this shover for me." If they write a power of attorney to one another, one of them may collect, for he admits that he only paid one of them. But if he claims, "I paid both of you and I commanded that one shover be written, and it would suffice for me to show it to each of you," his claim is a valid claim, and the power of attorney is of no use. In what case does this apply? When they are not distinguished by name in the shetarot nor in the shover, and there is also no other sign in them. But if they are distinguished by name in the shetarot or by another sign, but not in the shover, it is upon the holder of the shover to bring proof. If he does not bring proof, he is obligated to pay both of them. The reason is that since he knows he was indebted to both of them, and each one has proof in his shetar that it is due to him from him, and in this shover there is no proof for the borrower that he paid this one, his hand is at a disadvantage, for he should have specified the sign in his shover. The two holders of the shetarot shall swear and take their debts from him. Even when there is a trust clause in the shetarot, they do not take without an oath since there is a shover against them [Levush]. And there are those who disagree and hold that the hand of the holders of the shetar is at a disadvantage and they must bring proof, and if they do not bring proof they shall lose [Shach and Taz]. One of the great later authorities decided according to the first opinion [Netivot HaMishpat], and the law requires further study.

One creditor who lent to two individuals named Yosef ben Shimon with two shtarot, and they were "tripled" or had another sign such that the shtar of each of them was recognizable, and there was found in the possession of the creditor a shover validated by witnesses stating that the shtar of Yosef ben Shimon is paid, but the shover was not "tripled" and it is not recognizable regarding which shtar it was written, and the two shtarot were found among the torn shtarot of the creditor—the strength of the shtarot is weakened and both shtarot are presumed paid. And some say that one of these is sufficient: either that the shover is validated, for this is clear proof that the borrower already paid, and even though the shover is found in the hand of the creditor we do not say that he prepared it to hand over to the borrower when he pays him, for if so he would not have validated it in beit din; or that they were found among the torn shtarot and a shover was found regarding it even if it is not validated and even without witnesses, as will be explained in siman 65 [Shach and the Gra]. And the first opinion holds that since there is a flaw in the shover in that it is not clarified regarding which shtar it was written and it is also in the hand of the creditor, therefore with validation alone or by being found among torn shtarot alone he can at least collect one shtar from the one whom he says clearly was not paid by him, with a migo that if he wanted he could have hidden the shover; but with validation and being found among the torn shtarot, it is like a migo in the place of witnesses [and at the end of the first chapter of Bava Metzia it deals with a case where he has no migo or where it is also not clear to the creditor himself]. And the primary ruling is according to the "some say."

Two individuals named Yosef ben Shimon, where one of them borrowed from someone, and it has been explained that the other cannot collect; and if there was found for one of them a field that he purchased from the second Yosef ben Shimon, or they were partners in it, the creditor cannot seize the field with a claim of "from whichever [case it may be]" (mi-ma nafshakh). For he might say to him: "If I lent to you, it is well; and even if I lent to your fellow, since your fellow has no free assets, you have purchased my lien." And similarly, when they are partners, he cannot collect the half with a claim of "from whichever [case it may be]." The reason is because the assets of a debtor are only liened by way of guarantee, as "the assets of a person are guarantors for him," and a guarantor is only bound in a place where he can claim from the debtor himself. Since here he does not have the ability to claim from the debtor himself, as each one deflects him to his fellow as has been explained, and the guarantor—which are the assets—it is hidden from them for whom they are guarantors, therefore he cannot collect even from the assets which are the guarantors. It follows that one who becomes a guarantor for two individuals named Yosef ben Shimon, whether to two creditors or to one creditor, and afterwards a contract was produced against one Yosef ben Shimon or both of them, a contract against each one in a manner that with these contracts there is no ability to collect from them because one will deflect him to the other, the guarantor is also not liable. This is specifically when even the guarantor himself does not know of the loan, only that he guaranteed for him orally or in a contract not at the time of the loan, and he does not know to whom he lent, and only the creditor claims with the contracts, and the contracts are like a potsherd. But if the guarantor knows who the debtor is, the guarantor is liable to pay, according to what I wrote in siman 129, that if the guarantor knows and the debtor denies, the guarantor is liable to pay [Netivot HaMishpat], and as we explained in siman 37, section 18; see there.

It appears that everything that has been explained in this siman regarding two individuals named Yosef ben Shimon only applies to a document upon which witnesses alone are signed. However, if the borrower is also signed with them, these laws do not apply at all, for it can be clarified via his signature who the borrower is, by comparing signature to signature from other writings and documents and similar methods of authentication. And if he deflects this onto the other, the beit din will clarify via the comparison of the signature, and this has the law of a complete document for all matters, even to collect with it from purchasers, for you have no greater sign than the authentication of the signature. And likewise, if he is signed alone on the document, this has the law of a document with his signature which will be explained in siman 69 for all matters.